More on the history of New York’s fracking ban

I accepted a recent assignment for the Press & Sun-Bulletin – recounting how fracking was stopped in New York – with feelings of both eagerness and uneasiness.

Eagerness was due to having a chance to recap the history of a story I have been covering for seven years. The uneasiness stemmed from how I would do this in a newspaper-length article on a 48-hour deadline.

The results ran both in abbreviated and longer versions in the Press & Sun-Bulletin, Pressconnects, and this blog. The long version was 3,700 words -- about 10 times the length of a standard newspaper article. But it was still short considering the scope of the subject. By comparison, I needed more than 90,000 words to tell the story more comprehensively in my book, Under the Surface.

The key players that have shaped New York’ story from the onset number well into the hundreds, and I had space to reference perhaps a dozen in the newspaper piece. Not surprisingly, I have heard feedback from people that my story lacked some perspective. As one source put it, the story of the battle has become the battle for the story.

Two readers touched on particular events relating to a bill, signed by Gov. Paterson in 2008, that was the catalyst for events to follow. The bill would make spacing units for the large unconventional Marcellus gas wells conformable with existing state policy — a move that would effectively streamline the permitting process. Without it, shale gas development would get hung-up on an administrative process designed for the much smaller conventional wells.

The bill was the kind of wonkish-policy instrument that few lay people have the appetite for, and one that induces migraines to reporters writing for mainstream audiences. But it was also the sort of under-the-radar document that offers stakeholders who master it a strategic advantage in influencing important decisions. In this case, it was a necessary component for the gas industry to get things moving in New York. While this policy-making was different from the grass roots aspect of the movement that I report on, the bill ended up being a notable reference point and precursor to the anti-fracking movement.

Although the bill passed overwhelmingly, Assemblywoman Donna Lupardo and a small group of her colleagues voted against, she said, to “send a message to Paterson.” At the same time, she added, “local and statewide activists raised red flags about what this bill would do to speed up the process as well. That helped put the brakes on the whole matter.”

Paterson ordered a hold on permitting pending an environmental review when he signed the bill. But the bill had, for the record, a certain symbolic relevance. More importantly, it was a magnet for organizational involvement in state affairs that, by some accounts, was a forerunner of the anti-fracking movement.

Roger Downs, a program director with the Sierra Club, noted that several environmental organizations were among the first to recognize the significance of this spacing bill, and engage and challenge the DEC about what its impact would be.These groups included the Sierra Club Atlantic Chapter, Catskill Mountainkeeper, Riverkeeper, Delaware Riverkeeper Network, Natural Resources Defense Council, Catskill Center for Conservation and Development, The Wilderness Society and Catskill Citizens for Safe Energy, Damacus Citizens for Sustainability. (I’m sure I am leaving some out.)

Now, moving on to an altogether different thread of the story, Chip Northrup, the drilling-investor-turned-fractivist, offers another critical aspect of the story’s history: economics.

Northrup writes:

We can summarize why fracking was prohibited in New York with a simple construct – the cost/ benefit ratio – what the environmental risks and economic costs would be to the state and it citizens versus the benefits of shale gas industrialization. Initially, this ratio appeared to tilt very much in favor of fracking – at least in the popular press and in the corridors of power – because the gas industry had grossly overstated the benefits of shale gas development while categorically denying the risks and collateral damage associated with it.

You can read Northrup’s full post here.

I am currently finishing an updated version of Under the Surface, Fracking Fortunes and the Fate of the Marcellus Shale, to be published in paperback by for Cornell University Press next year. This will probably be close to 110,000 words. I would like to think, as the subtitle suggests, it covers a lot of ground and offers a pretty good idea of events that distinguish New York from Pennsylvania and the rest of the nation with the unfolding of the on-shore drilling boom. But there will always be more to report. In that spirit, I encourage readers to pass along any of their own stories or recollections.

Trespassing case tests driller’s control over leased land Activist banned from parks, schools, stores w/ Cabot lease

Vera Scroggins in front of a drilling rig in Dimock Township
PHOTO JAMES PITARRESI

After being charged with trespassing, anti-fracking Vera Scroggins has been banished from land leased by Cabot Oil & Gas. That’s no small deal. The Texas drilling company has leases on more than 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including rights to property of friends, neighbors, stores, parks and schools.

The Cabot v. Scroggins trespassing case might have been relegated to a journalistic footnote in a national conflict over shale gas development and high volume hydraulic fracturing. It has long been standing practice (and common sense) for companies to restrict access to operations where crews are using heavy equipment and hazardous chemicals under high pressure to drill wells and fracture bedrock a mile deep in the ground.

Scroggins admittedly crossed into designated work areas on occasion, but there were no signs denoting trespass zones, she said, and her ventures into drilling territory in each case were in good faith to openly ask questions and seek information. (Some background on this in a moment.) The remarkable and possibly groundbreaking aspect of this case, however, is not the charge or the defense, but the resulting preliminary injunction the Susquehanna Court of Common Pleas issued on October 21, 2013. Pending trial of the case this spring, the order forbids Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That language, interpreted by Scroggins lawyer Gerald Kinchy, in effect forbids Scroggins from going to certain school grounds, her auto mechanic of 23 years, many other businesses, the county jail, and homes of dozens of friends, among other places. Doing so puts her at risk of contempt of court. (See the full order, embedded below.)

Cabot’s action raises the broader issue of how much control energy companies have over land they lease. While mineral extraction is their stated intention, many standard leases give companies ill-defined and seemingly limitless discretion over land use. “When drilling companies lease rights to land for mineral extraction,” Kinchy said, “does that mean they have rights to exclude other people from that land, even property owners?”

Apart from the Scroggins case, that question has mostly applied to practical matters of daily extraction operations. A company such as Cabot might own rights to a large tract, but it is generally concerned about gaining or restricting access to active work areas. Conflicts might crop up over where exactly a company might build a pad, access road, or pipeline, and at what inconvenience or loss of land use to the landowner. When that happens, lease language and the respective parties’ appetite and resources for litigation come into play, with the company often in a position of leverage.

The Scroggins case breaks new ground. Issues of practicality (and enforcement) aside, it probes whether a company can legally keep a person from stepping foot on leased land outside of established work zones, including public spaces where others are allowed.

Now for some background. Cabot Oil & Gas operations have drawn numerous violations from the state and much national and international media coverage due to recurring water pollution problems in Dimock Township. The company has been a particular target for critics and activists, including Scroggins, who lives in the neighboring township of Brooklyn. (More about that here.)

In Under the Surface, I describe Scroggins this way:

 … a grandmother, amateur videographer, and advocate for many causes, including home births, home schooling, and no mandated childhood vaccinations. In 2009, she took up the cause as a watchdog against oil and gas operators who began leasing large tracts of northeast Pennsylvania to develop the Marcellus Shale. “We’re extra eyes and ears for the DEP,” she told [a community organizer]. “They don’t have enough workers and we have to pick up the slack.”  

Footage from some of Vera’s vigilante patrols in 2009 shows encounters with roughnecks and pipeline workers, some reacting with amusement or annoyance to the woman with a home video camera showing up at these remote and often inaccessible work sites and peppering them with questions. Some called her “ma’am” and briefly addressed her questions; some directed her to the foreman, who almost always asked her to leave; and some simply ignored her or walked away. These brief encounters typically punctuate long unedited footage of vacuum trucks, excavation equipment, and hay bales. Vera also taped public forums and interviews with residents … recounting their experiences with gas development. These videos she posted online, where they joined a broad and growing collection of depictions of Susquehanna County gas development by other independent media, advocates … and professional news outlets. They generally … presented aspects of drilling that lent themselves to visuals: truck traffic, derricks, flaring, fracking, and heavy machinery cutting swaths through the countryside.

Until the injunction, Vera had intensified her efforts, serving as a tour guide for parties interested in seeing and learning about drilling and fracking from a perspective other than that offered by company tours and commercials. On occasion, she has helped me locate operations in the region (viewable from  public roads.)

Cabot poses a sound argument that those venturing onto work sites without permission pose an annoyance, distraction, and/or safety threat. But Vera’s presence has become iconic of another kind of threat to the company – bad public relations and control over its image. The scope of the injunction against Scroggins invites wonder whether Cabot attorneys who crafted the language were unintentionally imprecise, or whether they are testing a strategy to eliminate their Scroggins PR headache once and for all, while sending a message to other activists.

George Stark, a company spokesman, was unavailable to answer this and other questions.

Court Order 10-22-13 New Date 1 2 14 Next Court Day by Thomas Wilber

Fracking critics gain leverage with social media mastery Why PR matters in the war over shale gas

Richard Levick, an influential public relations advisor, wrote a piece for Forbes last week about how the Oil and Gas industry’s PR machine is losing the battle for hearts and minds of mainstream America “despite industry advertising budgets that dwarf the activist war chest.” Why? In Levick’s view, it’s all about anti-fracking activists’ mastery of social media to galvanize and amplify grass roots movements. Or in his words:

Social media outreach, online content development, and Search Engine Optimization (SEO) and Marketing (SEM) are all dominated by activist voices. As a result, they are not only rallying significant grassroots opposition; they are doing it in ways that neutralize any advantage that industry money once provided.

Anti-fracking campaigns, both at institutional levels and from the ground up, were quick to catch the crest of the social media wave that has largely displaced community newspapers and town halls as popular incubators and catalysts for free speech, political action, and self-governance. Levick uses an empirical analysis, including a count of tweets about fracking over a given period, to illustrate how “the most influential conversation around this topic is highly negative.” He laments that the industry supporters do little or nothing to engage this on-line discussion, and urges them to get in the program.

Activists understand that the marketplace of ideas has evolved – and they are evolving – and leading — right along with it. If fracking is to become an accepted practice in the U.S., the energy industry must do so as well.

I found Levick’s points relevant enough to merit posting on my own Facebook Page, with this comment: “PR & the fracking war. Big Oil & Gas $ versus anti-fracking organization. Media expert Richard Levick explains natgas industry’s failure in Forbes.”

A reader, perhaps interpreting my post as an endorsement of Levick’s industry coaching, responded that the article was misguided, as the anti-fracking battle transcends a PR contest. She left this query. “He thinks it just comes down to a pr battle. What do you think?” Fair question, and one that – given it was posted on facebook and I am now responding on Blogger -- illustrates the influence of the new media that Levick writes about.

So here’s my answer: As a journalist, I’m always interested in how a message is conveyed, the degree to which it piques public interest, people’s perceptions, and what influences them. I welcome analysis from informed observers, and in this regard I think Levick’s piece rings true… mostly. The industry has done a lousy job from the start explaining itself with a patronizing “Trust-Us-It’s-Safe” message. This assessment is not just from Levkick, but is shared by notable industry supporters as well as skeptics, and it applies to both the industry’s traditional advertising campaigns in print and broadcast, as well as its social media efforts. Tom Ridge, former Pennsylvania-governor-turned-public-relations-figurehead for the industry, told an Associated Press reporter that the industry had to do a better job conveying a positive public image and “they know they have some work to do.” That was in 2010.

Last week, Sarah Murphy wrote an article for Motley Fool, the popular investor guide, titled “Fracking is Losing the PR battle.” She cited a recent report called Disclosing the Facts: Transparency and Risk in Hydraulic Fracturing Operations,  released last week. The report assesses investors’ needs for risk disclosure and mitigation against company practices and found “a systematic, industry-wide failure to adequately disclose fracking-related information that is material to investors.” Murphy explains what this means in her view:

The thing is, fracking may really not be as awful as the campaigns make it appear, but the industry is going to have to rethink its strategy or risk condemnation in the court of public opinion… 

Seriously, these guys have got to step up their game if they want to survive. At last week's SRI Conference on Sustainable, Responsible, Impact Investing, I talked with countless fund managers, investors, financial advisors, and academics, all of whom agreed that while fracking is controversial from a sustainability perspective, the industry's ham-fisted approach to public engagement has been so feeble as to be pathetic.

In this day and age, much of that engagement is on line. And, as Levick points out, it’s a place where the industry is out of its element of old-fashioned Madison Avenue advertising strategies aimed at conventional media.

While industry money went into advertising and traditional “outreach” campaigns that net diminishing returns in the digital age of public affairs…  activists stretched every dollar with online efforts that prove far more effective.

The trend is also important in politics. Levick links to another assessment that recaps the advantage Obama had over Romney by understanding and applying the power of Social Media in an “era where familiarity, credibility, and the ability to forge personal connections trump traditional advertising at every turn.”

The accounts of Levick, Murphy, and Ridge are but a few assessments of how the industry has failed with the traditional media with patronizing and heavy handed messaging, and failed with the new media with its inability to engage savvy and influential audiences on line. But there is a critical third frontier that they don’t address: Big-money politics.

Popular opinion is only one gauge of a campaign’s success. The other is special interest – the megaphone through which public opinion is conveyed to Washington. The size of the megaphone is related to lobbying wherewithal of a given interest, and the lobbying wherewithal is largely a function of the money behind it. Here the industry is winning, at least in Washington. The Obama administration has identified shale gas development as a “priority” in meeting the nation’s future energy needs. That may be related to lobbying, or not. But certainly lobbying has everything to do with the policy framework that heavily favors the industry over others.  Specifically, Obama’s administration and Congress have preserved drilling and fracking industry exemptions from the Safe Drinking Water Act and hazardous waste disposal laws – passes that allow industry to operate with one foot in the pre-regulatory era. Without these exemptions, the industry would have to reveal what hazardous substances that it puts into the ground, and characterize the waste that comes out – revelations that would open the door to a host of other laws, and cast fracking in an altogether different public light.

The lobbying battle at regional and local levels is not going as well for the industry, or conversely, is going much better for the activists. New York state remains off limits to the industry pending a moratorium now in its sixth year. And this month local municipalities in California and Colorado have advanced the Home Rule movement -- which settles drilling issues with local town boards and referendums -- that is gaining traction in New York and Pennsylvania. As Levick notes about the recent vote in Colorado: Boulder, Fort Collins and Lafayette overwhelmingly voted for drilling bans. The industry had only one victory in Broomfield, an area that traditionally trends Republican, where voters rejected the environmentalist agenda by the slimmest of margins.

In the long run, operators and investors continue to push forward with shale gas development that has flooded the market with cheap natural gas. The industry’s success or failure over the longer term hinges on its ability to address issues of sustainability -- not just ecologically, but economically and politically -- in the Market Place of Ideas, where voters and investors judge the good from the bad.